Citation Nr: 22015018 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 14-22 661 DATE: March 16, 2022 REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for a fractured right patella is remanded. REASONS FOR REMAND The Veteran has active-duty service in the United States Marine Corps from July 1978 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by a Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA). In August 2019, the Board remanded the appeal to VBA for additional development, to include obtaining an adequate VA medical opinion. Entitlement to compensation under 38 U.S.C. § 1151 for a fractured right patella is remanded. Unfortunately, there has not been substantial compliance with the Board's previous remand directives regarding the issue. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Here, the Board specifically instructed VBA to obtain a medical opinion concerning the Veteran's claim. The examiner was specifically instructed to consider the Veteran's June 2014 reports of pain with movement post-fracture, popping, and difficulty manipulating his right leg for purposes of dressing. Review of the December 2019 VA medical opinion reveals the examiner did not consider such evidence and noted specifically that the Veteran did not feel pain in his legs. As the examiner dismissed the Veteran's competent lay assertions, the Board finds a remand is required to obtain an adequate medical opinion in compliance with previous remand directives. Additionally, the December 2019 VA examiner was asked to opine if it was "at least as likely as not (a 50 percent or greater probability)" that the claimed disability of compensation under 38 U.S.C. § 1151 for a fractured right patella was caused by or became worse as a result of the VA treatment at issue. Following direction from the United States Court of Appeals for the Federal Circuit in Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021), the proper standard of review is whether the factors are in an "approximate balance." Lynch held that the Veteran is entitled to the benefit of the doubt when the evidence is in an approximate balance - i.e., nearly equal - and does not require the evidence to be in exact equipoise. See id. The matter is REMANDED for the following action: 1. Schedule a VA examination, with an appropriate medical specialist in orthopedics, or other similar specialty, to provide an opinion regarding the questions below. The examiner should be provided a complete copy of the claims file for review and should provide an opinion and a complete rationale regarding the following: (a.) Is at least as likely as not (an approximate balance of positive and negative evidence) that the Veteran has an additional disability as a result of the September 2010 VA medical treatment? In answering this question, the examiner must specifically consider his June 2014 reports of pain with movement post-fracture, popping, and difficulty manipulating his right leg for purposes of dressing. The examiner should also consider a VA treatment note from October 2011 indicating knee contractures and various VA treatment notes from June 2012 referring to range of motion in the knee from 70 to 75 degrees. The examiner is reminded that, to determine whether a veteran has an additional disability, VA compares the veteran's condition immediately before the medical care or treatment in question to the veteran's condition after such care has stopped. (b.) If there is additional disability, is it at least as likely as not that the additional disability is the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the treatment and/or that VA failed to exercise the degree of care that would be expected of a reasonable health care provider? (c.) If there is additional disability, is it at least as likely as not that the additional disability is the result of an event not reasonably foreseeable by a reasonable health care provider? In answering this question, consideration must be given to the Veteran's contention that his patella fracture was due to misconduct or negligence of his therapist, including due to distraction on the part of the therapist. That is, was the event the type of risk that a reasonable health care provider would have disclosed in connection with informed consent procedure. A complete rationale for any opinion offered should be provided. 2. Thereafter, readjudicate the claim on appeal. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDuffie, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.